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Just as you have become accustomed to writing memos, it is time for you to switch gears and focus on writing a brief. Writing a brief does have some things in common with writing a memo: you still employ case analysis techniques, you still consider all sides of the issue, and you still provide the recipient of the brief with the information needed to make a decision. This handout will provide you with some of the basic comparisons between memo and brief writing. Your legal writing professor, however, is your best source of information on brief writing. Defer to your professor in all instances where your professor and this handout disagree. Compared to the memo, the brief takes a stronger stance on the outcome of a legal issue and uses persuasive writing techniques to persuade the reader that one position on the issue is the correct one. Both your fact presentation and analysis will be crafted so that they read favorably for your client. In addition, the primary audience for a persuasive brief will be the judge deciding your case, not an attorney within your law office. Accordingly, your job will not be just to recommend action; your job will be to persuade the court to take the action your client desires. One of the first considerations in writing a legal document is how you will address some of the rhetorical elements in your document, such as purpose, audience, stance and scope. The chart below provides a comparison of how these elements change when you move from the memo to the brief.
· Purpose: Memos discuss, recommend, and advise. The memo objectively informs the reader about what the law is. It also helps develop a legal strategy with other attorneys. Although it is not a guarantee of a case’s outcome, it is an attempt to illustrate what the outcome will probably be when the law is applied to a particular set of facts. · Audience: Another lawyer, supervising attorney, your client.
· Purpose: Briefs argue. The brief seeks to persuade the reader that your application of the law to the facts is the correct one. Although a brief cannot be dishonest or misleading, it should emphasize favorable arguments and minimize the force of opposing arguments. The purpose is to win the case, using the law in the way most favorable to your client. · Audience: Opposing lawyer, judge, judicial clerk, your client.
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what the memo is about. uses the facts of the case and the applicable law to elicit answers that affirm the analytical reasoning of the brief. † MEMO · Caption: informs the reader who wrote it. Dernbach. however. Ramsfield. · Scope: The specific question. that memos form the basis for legal decisions. 21524 (2d ed. · Statement of Issue(s) Presented for Review: states the legal questions addressed in the brief. · Scope: The specific question. 2 . time and financial constraints will dictate how wide the scope of your brief will be. ensure that you search for all the legal arguments and materials that support your conclusion and prove that your client should prevail. docket number. the scope of the question. It is often one sentence that alerts the reader to three things: the jurisdiction and controlling law. 6263. and the date. 17476. 1994); and Mary Barnard Ray and Jill J. · Question(s) Presented: presents an objective statement of the legal questions to be answered in the memo. It also invokes the applicable law and the most legally significant facts. while minimizing the weaknesses of his client’s case. however. 18791. side represented and names and addresses of counsel. A brief writer. Memo writers can then use the outcome of that research to present their client’s cases most favorably. name of the case. † For further discussion on all of these elements. however. A brief writer emphasizes the strengths of his client’s case. 18488. BRIEF · Stance: Objectivity in research is necessary when writing a brief. This section. Accordingly. strives to use that research to create legal arguments and offer legal conclusions that cast his client’s case favorably. 28990. consult: John C. 24. and the most legally significant facts. 364 (3d ed. However. A Practical Guide to Legal Writing & Legal Method. Legal Writing: Getting it Right and Getting it Written. a brief writer usually knows the desired outcome. BRIEF · Title page or caption: identifies the court. However. 56. you should be honest about the strengths and weaknesses of your client’s case and what the law does and does not allow before making your recommendation. Singleton. Accordingly.MEMO · Stance: Objectivity in research is necessary when writing a memo. time and financial constraints will dictate how broad the scope of your memo will be. for whom the memo was written. 9293. Remember. memo writers are clear about both the weaknesses and strengths of a client’s case. 35860. 2000). Richard V.
and application of the law to your client’s case. This section usually does not include citations to cases. · Statement of the Case: an account of the facts of the case as told from your client’s perspective. and uses that law to address arguments on both sides before making a recommendation. This section discusses both the strengths and the weaknesses of your client’s case. synthesizes the law. It should not repeat what came before; instead it should synthesize your findings. A theory of the case is your unifying idea or concept of the case. However. analysis. The Summary of the Argument should be selfcontained so that a reader who had the time to read this section only would still understand the essence of your argument. It also normally includes a brief explanation of the legal basis for that answer. weaknesses in your client’s case are minimized. · Argument: the heart of the brief.MEMO BRIEF · Brief Answer: a short answer to the question(s) presented. recommend a strategy. and advise your client. what makes the argument section most effective is how counterarguments are distinguished and thus rendered inapplicable to your case. including logical large and smallscale organization and case analysis. · Conclusion: states what it is you want the court to do. · Conclusion: a more thorough summary of the analysis in the memo than the brief answer. · Statement of the Facts: an objective and complete description of the legally significant facts relevant to the discussion section. The argument section also still addresses counter arguments. This section contains your favorable interpretation. while strengths in your client’s case are highlighted. affirm the lower court’s decision. legal. and policy issues in your brief. but is still specific to the client’s case under review. It is the implicit message in your brief that will tie together the factual. Although it should not dishonestly omit important legal facts. using basic concepts of legal writing. It is 3 . including logical large and small scale organization. Case theories are not discussed in conjunction with the memo and may seem like an ambiguous new concept when first introduced in the context of a brief. Perhaps the most confusing aspect of writing a brief for the first time is grasping the concept of the theory of the case. it should seek to make the court sympathetic to your client. · Discussion: the heart of the memo. · Summary of the Argument: a statement of the major conclusions in your brief and the reasons supporting those conclusions. statutes or regulations. Instead of objectively examining both sides of the case. This section also includes the case's procedural posture. The argument section still uses the basic concepts of legal writing. and case analysis.e. This section is where you present the legal answer. i.
your opponent’s theory of the case might be that theft laws should be strictly construed and enforced. Additionally. a unifying theory would be that the restrictions. Legal Writing: Getting It Right and Getting It Written (3d ed. rather than a separate. Using this theory. the young ages of his children. a welldeveloped case theory can be of great benefit to your client. here are six areas you can focus on: § ‡ § Jill J. Dernbach and Richard V.” Using this theory. For example. you might be defending a client who maintains he was falsely arrested.” to “the police did not take appropriate measures to ascertain your client’s identification” would all be written so as to emphasize that the wrong man was arrested. To start. Alternately. constitute a necessary and appropriate security plan for the prison. separate ‡ ideas. When a court has not already definitively decided an issue. In such a situation. The Law As Architecture: Building Legal Documents 131 (West Group) (2000) Adapted from John C. from “the arrest warrant was invalid. Your implicit theory of the case might be “you got the wrong guy. you might use as precedent in your analysis section cases in which courts were lenient on people convicted of stealing in order to support their family. it may be more open to a new perspective on the issue. Or suppose your client is being prosecuted for stealing from a store. 21524 (2d ed. Now that you’ve developed your theory of the case. unrelated restriction. 1994); Mary Bernard Ray and Jill J. 4 . you can begin examining persuasive writing techniques; your theory of the case will determine which persuasive writing techniques are most useful to you. Singleton. your facts section might be crafted to emphasize your client’s difficult financial situation. Alternately. A Practical Guide to Legal Writing & Legal Method. each argument in the brief. You will find that developing a strong theory of the case is particularly necessary when you are dealing with new or unsettled areas of the law. in a case where a prison warden has imposed several restrictions on the prisoners. By inventing a unifying theme. Ramsfield. Each restriction is then valid as an integral part of a prison security plan. 18791. But your client is very poor and was only stealing food to feed his family. you create a mechanism by which the reader processes your brief: readers can more easily process one idea into which several other ideas fit than process several. as a set.the sense of direction you create for the reader through the structure of your brief. the fact that he had conducted a thorough job search. Ramsfield. or was unable to obtain public assistance in time. Your theory of the case might be that your client had no choice. 2000).
5 . the issue presented might focus on the original legal questions. the standard of review will influence the way in which you craft your “Issues Presented” section; under a clearly erroneous standard. For example. The standard of review varies from state to state. Ramsfield. It shows the validity of your legal analysis and thus adds to the persuasiveness of your brief. under “de novo review. appellate courts have much more latitude in reviewing constitutional cases involving individual rights than administrative law cases involving technical facts and rules. In order to determine the applicable standard of review for your case. If you are writing about a factual issue and the applicable standard of review is clearly erroneous. you can directly import the comparative reasoning techniques you learned in writing your memo into your brief. The client’s situation (the minor premise) is then proven by analogizing it to previous ** Jill J. There are several different standards of review. you will need to focus on the facts of the case and why the court below did or did not make any clear errors. Remember that the standard of review will inform the scope of your writing. For situations in which direct precedent is lacking. you can focus on the legal mistakes the court below did or did not make. Analogy within deduction begins with defining the rule (the major premise) by stating the statute. The standard of review adopted in a case will depend on the nature of the case and the case’s procedural posture when the decision of the court below was issued. For example.1.” the widest review. and reviews only for clear errors. The standard of review is critical because it defines the scope of issues that the court will actually be reviewing. It is most useful when there is particular precedent on the legal issue in question because it shows the reader that the courts in your jurisdiction would make a similar conclusion when dealing with the facts of your case. Reasoning: Analogical comparative reasoning. however. already familiar to you because you used it in writing your memo. the issue presented might focus on the lower court’s mistakes. Under a de novo standard. you will need to research prior cases in your jurisdiction that address the same issues you are addressing in your brief. In brief writing. is the most traditional form of legal analysis. like analogy within deduction. comparative reasoning does the same thing. Additionally. When you have clear precedent. The standard of review determines the latitude afforded to an appellate court to substitute its judgment for that of the trial court. and from issue to issue. You should include the standard of review in your brief and cite to the case(s) that state the appropriate standard of review. The Law As Architecture: Building Legal Documents 299303 (West Group 2000). Standard of Review in Appellate Briefs: The standard of review is the criteria that a court uses to evaluate the decisions of the court below. If you are writing about a legal issue and the applicable standard of review is de novo. or synthesizing precedent. without extending deference to the reasoning or decisions of the lower court. an appellate court is free to substitute its legal conclusions for that of the lower court. you might consider a ** particular form of neoclassical reasoning. 2. Under a more limited “clearly erroneous review” an appellate court is more deferential to a lower court’s finding of fact.
it will then have to consider whether the mistakes dictate a reversal of the trial court under the standard of review. 3. including induction to form the rule. to previously decided cases. The important thing to remember is that you are using the theory and making the arguments that best serve your client's needs. counterarguments are disproved by distinguishing the client’s case from those cases from which the counterarguments originate. If this is new law. Another form of reasoning uses the legal trends available in your own jurisdiction. analogizing your case to a prior case decided by the trial court might be your best legal strategy. Arguing that the trial court committed a reversible legal error may be your best legal strategy for an appellate court. be very specific about who your audience is. a conclusion on your client’s case can then be made. Finally. Accordingly. Purpose and Audience: As discussed in the chart on page one. and less like the cases from which counterarguments †† originate. and other convincing information. If the appellate court decides the trial court made mistakes. †† For more on other forms of neoclassical reasoning.supporting cases. see: Jill J. deducting using example. Surveying the laws in your jurisdiction will allow you to determine what the trends in legal thinking are. Legal process focuses on the fairness of procedural treatment. empirical data. Another reasoning technique is to frame the arguments in the context of legal process. Let your purpose inform all the choices you make throughout your brief from your overall organization to your word choice. trial courts will be interested in theories. Once you have determined the trends. an appellate court will focus on whether the trial court applied the law correctly or made any legal errors. You can also use persuasive authority to illustrate what the application of law should be in your jurisdiction. “could this paper be organized in way that will make my client’s case seem stronger to the reader?” or “could I use a word here that minimizes (or emphasizes) the effect of my client’s actions?” In addition. deduction using elements and neoclassical fallacy. you can then frame an argument with that trend in mind. be particularly aware of the purpose and audience of your document. there are differences in the purpose and audience as you move from memo to brief writing. As a brief writer you can use any of these reasoning techniques. Are you writing to a trial or appellate court? Trial courts emphasize precedent. In writing your brief. politics. Thus a trial court will be comparing the rules. After having proven that the client’s case is more like the supporting cases. however. The Law As Architecture: Building Legal Documents 31470 (West Group 2000). 6 . Ask yourself. Next. Alternately. you could also frame your arguments in the context of critical theory or law and economics. Ramsfield. reasoning and policy of your case.
5.4. You may decide to finish with a strong argument. but also uses emotionprovoking language to state the legal conclusion and legal reasoning persuasively. is facing liability for failing to successfully sterilize a former patient: 1. The court should not award the plaintiffs damages for the costs of raising their normal. Point headings in a brief should do more than guide your reader; they should also be concise arguments for your side. Because point headings include the legal conclusions and the basic reasons for those conclusions. because it only makes sense after the weaker arguments have been discussed. Ordering the parts of your brief to maximize their persuasiveness is different from memo writing. “Writing Effective Point Headings. 2.” 7 . rather than begin with it. and the flow of your arguments.” 6. they are a great place to convey your theory of the case through use of persuasive sentence structure and language. The second point heading is more effective because it not only states the legal conclusion. the proportioning of your arguments. Point Headings Point headings can be used in memo writing to guide your reader through your memo. You might give your strongest arguments the largest proportion of the paper. As such. In addition to providing an outline of your arguments. both of which might be used in a case where your client. In making decision on organization of your brief. where the parts of the memo are organized to maximize understanding of the issues. consider which structure will maximize the persuasiveness of your arguments while still making them easy to follow. think about the relative strengths and weaknesses of your arguments. It subtly tells the reader “there is no reason for damages hereraising a ‡‡ healthy daughter is a gift. to convey its importance. healthy daughter to majority age because a healthy child is not a legally recognized injury. point headings and subheadings are located within the body of the Argument section and are also listed in the Index. not an injury. You might want to bury a weaker or less important argument between two strong arguments. they serve as thesis statements for the major sections and subsections of the brief. The plaintiffs should not get any damages. they provide the reader with a persuasive and concise summary of the legal argument in that section. Structure and Organization: In organizing the arguments in your brief. a doctor. see the Writing Center handout. Consider the following point headings. Small Scale Techniques: There are also techniques you can use when structuring your sentences and choosing your words that will increase the persuasiveness of your brief: ‡‡ For further discussion on point headings. In a brief.
Kaitlin Waters was mercilessly drugged into a lifeless vegetative state for every minute of her life. It does so. You might also use titles to convey deference to authority. Finally. The second sentence is negative and overly dramatic. Scope. Ossining. When writing becomes overly dramatic. however. if you believe that your client committed a crime because he was young and naïve. It leaves the reader wondering whether this is really an accurate description of the facts. For example.” CONCLUSION As you begin work on your own brief. be more descriptive when you want an image to remain in the reader's mind.When structuring your paragraphs and sentences. you will lose credibility with the court. Kaitlin Waters was on a large and complex daily regimen of drugs. you can emphasize key points by placing them in shorter sentences and repeating them throughout the document.. you can place points you want to emphasize in main clauses and points you want to deemphasize in dependent clauses. as you begin to write. both of which might be used in a brief arguing that a doctor inappropriately medicated your client: 1. Consider the following examples. Before you begin writing think about how you will address each of the four basic rhetorical elements (Purpose. Additionally. Finally. In choosing your words. you might want to subtly emphasize his youth and naiveté in the statement of the facts by using the facts that draw attention to his age or lack of life experience. the first sentence still leaves the reader with the impression that your client was taking too much medication. In contrast. including… 2. Descriptive language can also be useful in conveying your theory of the case. you might emphasize important information by placing it at the beginning or end of a paragraph or sentence. When structuring your individual sentences.e. through use of actual facts and persuasive descriptive language like “large” and “complex. and less descriptive when you want the reader to forget the image. keep in mind the development of your Theory of the Case. i. and Stance) elements in your brief. focus on using persuasive writing techniques that will emphasize your client’s position and prove your recommended outcome is the best choice. Audience. referring to your client as Officer Harding or Dr. 8 . remember when employing persuasive techniques in your brief not to go overboard.